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Does Texas Have Contractual Alimony or Spousal Maintenance? Yes!

In Texas spousal support (a/k/a 'spousal maintenance' or 'contractual alimony') is additional money, not part of a division of marital property or child support, that one spouse pays to the other temporarily from future income to support the ex-spouse after the divorce. If this money is also paid before the divorce is finalized, it is called “temporary spousal support”. Spousal support or alimony can be an important source of funds for a parent to pay a mortgage to keep children in the marital home after divorce and to create a qualified stream of income to qualify for a car or home loan. Alimony can enable a former spouse to pay for education or training to return to the work place or to advance his/her skills to become financially self-sufficient and to contribute to children's needs.

Whether a former spouse receives spousal maintenance or contractual alimony in Texas is more than a legal and economic question. It is one of the trickiest emotional issues of divorce. A spouse often requests spousal support when he or she does not make as much money as the other, lacks a college degree, has been out of the work force raising the children or is facing a challenging job market. That spouse may feel deserving of compensation after divorce for sacrificing his or her own education and job to raise the family, manage the household, and support the other’s career. For the spouse contemplating paying spousal maintenance or alimony, it can be equally challenging to think about supporting the ex-spouse over and above child support and the divorce settlement if the soon to be former spouse contributed substantially fewer or no earnings during the marriage.

Spouses frequently blame themselves or each other for 'creating' or 'allowing' the circumstances that now necessitate spousal supoort. Spouses need to remember the actions they took in the past were decisions they made together in their family's best interests based on the information each of them had at the time. There was no crystal ball that could have foretold divorce, and if there had been, they probably would have made different choices. Ease up on each other. Move forward to understand what options and benefits there are under Federal tax laws and Texas law for spousal support.

What Are Court Ordered Spousal Maintenance and Contractual Alimony in Texas?

Texas has two types of spousal support: “court ordered spousal maintenance” and “contractual alimony”. There are significant differences between them: how you get them; how much they pay out; how long they last; and how they are changed or enforced.

The first major difference is court ordered spousal maintenance is the kind a family judge can order a spouse to pay involuntarily in litigation. In contrast, contractual alimony is spousal support the spouses agree to themselves (the court still has to approve the agreement as part of the divorce). Many times spouses in mediation want to understand what the law provides for court ordered spousal maintenance to guide their own decisions about what to agree to for contractual alimony.

How Do I Get Court Ordered Spousal Maintenance in Texas?

“Court ordered spousal maintenance” is the kind a family judge can order a spouse to pay involuntarily. But just because the law provides for it does not mean it is easy to get, that it will be a large amount of money, or it will last forever. To the contrary, the eligibility requirements for court ordered spousal maintenance are high, the amount and duration are restricted, and it can be changed or eliminated later. There is no 'palimony' in Texas, meaning a court cannot require someone to pay spousal support if there was no ceremonial or common law marriage.

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Why is court ordered spousal maintenance limited in Texas? Texas law provides for court ordered spousal maintenance only in limited circumstances. Texas is a community property state in which all community marital assets and liabilities are divided in a “just and right” manner on divorce by a judge, unless the spouses reach their own division by agreement themselves. In community property states like Texas, the financial division on divorce is usually as close to fifty-fifty asset by asset whenever possible, or if an asset cannot be divided, then it is offset by a different asset of equivalent value that is given to the other spouse. Generally, wages, bonuses, and income are divisible community property in Texas whether there is one breadwinner in the family or two. That means the court does not give all the money only to the spouse who earned it, and a homemaker is not penalized in the community property division for not working outside the home. For this reason, some see Texas’s community property laws as “protecting” a non-working or lower wage earning spouse on divorce.

An ideal in Texas is it is in everyone’s best interests for as many people in Texas as possible to be employed. The theory is court ordered spousal maintenance can be a financial bridge between divorce and self-sufficiency. This is why it is often referred to as 'rehabiliative' support. However, there is a prevailing view as well that spousal support creates a disincentive for a divorcee to return to gainful employment. That is one of the reasons the Texas legislature makes it tough for a former spouse in Texas to get court ordered spousal maintenance. However, Texas also recognizes that people need some help after divorce if they have been out of the work force, lack education, became disabled during marriage, must care for a disabled child and cannot work, or have experienced family violence.

If the parties are trying to reach an agreement for contractual alimony, why do the procedures for court ordered spousal maintenance matter? First, it is important to understand what the law provides in order to determine whether or not a spouse would be eligible for court ordered spousal maintenance if there is no agreement in mediation for voluntary payment of contractual alimony. Second, because Texas treats alimony by agreement as a contract between spouses (hence “contractual alimony”), the provisions the spouses agree to in writing about the contractual alimony are the same provisions the court looks to if there is a problem down the road. In other words, Texas does not impose rules for eligibility, amount, duration, and enforcement of contractual alimony like it does for court ordered spousal maintenance. However, looking at the rules for court ordered spousal maintenance may help you to decide what provisions you may want to write into any agreement you make together for contractual alimony.

Eligibility for Court Ordered Spousal Maintenance. In September 2011 Texas substantially changed the eligibility rules for court ordered spousal maintenance. Under the 2011 law the spouse must first prove that after divorce (meaning after the division of assets and liabilities) there will not be enough property (including that spouse's separate property) to meet his or her minimum reasonable needs (which usually means the spouse’s monthly expenses).

After proving that, the spouse must also prove at least one of the following:

1. the marriage has been for ten years or longer and the spouse made diligent efforts to either earn sufficient income or to develop necessary skills while the divorce is pending to meet his or her minimum reasonable needs; or
2. the other spouse has committed family violence; or
3. the requesting spouse has an incapacitating disability that arose during marriage; or
4. a child of the marriage (of any age) has a physical or mental disability that prevents the spouse who cares for and supervises the child from earning sufficient income.

A former spouse cannot request court ordered maintenance if that former spouse cannot meet his or her minimum reasonable needs because after divorce he or she lost a job or became incapacitated with a physical or mental disability.

Tip #1 for Seeking Court Ordered Spousal Maintenance in Texas: Don't Quit Your Job or Refuse to Look for Suitable Work, Training, or Education While the Divorce is Going On!

Texas law requires a spouse seeking court ordered spousal maintenance who has been in a ten year or longer marriage to prove he or she tried diligently while the divorce is pending to earn enough money to support him/herself or to prepare for gainful employment by going back to school or getting training to develop necessary skills for work. Don't get suckered into plotting to quit a job or intentionally refusing to better yourself during divorce. The consequences can be devastating.

Tip #2 for Seeking Court Ordered Spousal Maintenance in Texas: Don't Try to Be Sneaky! Family judges know every trick, ruse, and excuse lawyers and parties use to try to get spousal maintenance or to avoid paying it. Spouses who misrepresent their own need and eligibility for court ordered spousal maintenance or their ability to pay what is requested will quickly and irreparably lose credibility with the judge and each other.

Amount of Court Ordered Spousal Maintenance. If the judge finds a spouse is eligible for court ordered spousal maintenance, the judge has to decide how much to order and for how long. In most cases, the upper limit of the amount is the difference between the spouse’s monthly expenses and that spouse’s income, but that does not end the question. Determining the amount is not a simple math equation. By law, the judge must also consider:

1. each spouse’s financial resources after divorce (including separate property);
2. how paying child support or spousal maintenance affects both spouses’ ability to pay their bills;
3. one spouse’s contribution to the other’s education, training, or increased earning power;
4. the age, employment history, earning ability, and physical and emotional condition of the requesting spouse;
5. each spouse’s education and employment skills and how long it would take for the spouse asking for maintenance to get education or training;
6. whether either spouse inappropriately spent community funds or disposed of community property during marriage (also called “fraud on the community”);
7. homemaker contributions;
8. marital misconduct of either spouse; and
9. family violence.

Maximum Court Ordered Spousal Maintenance in Texas. The cap on court ordered spousal maintenance in Texas is set by statute. The amount of spousal maintenance the judge orders a spouse to pay involuntarily cannot be more than $5000 per month or 20% of the paying spouse’s average monthly gross income, whichever is lower.

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Gross income includes:

1. 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
2. interest, dividends, and royalty income;
3. self-employment income;
4. net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and
5. all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, unemployment benefits, interest income from notes regardless of the source, gifts and prizes, maintenance, and alimony;

and does not include:

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1. return of principal or capital;
2. accounts receivable;
3. benefits paid in accordance with federal public assistance programs;
4. benefits paid in accordance with the Temporary Assistance for Needy Families program;
5. payments for foster care of a child;
6. Department of Veterans Affairs service-connected disability compensation;
7. supplemental security income (SSI), social security benefits, and disability benefits; or
8. workers' compensation benefits.

Length of Court Ordered Spousal Maintenance in Texas. Generally, court ordered maintenance must be limited to the shortest reasonable time that allows the receiving spouse to earn enough money to meet monthly expenses unless the spouse has a mental or physical disability, is caring for an infant or young child, or there is some other compelling reason the spouse cannot provide for his or her minimum reasonable needs. If any of these is the basis for extended or indefinite spousal maintenance, the paying spouse or the court may ask for a review every so often to see if the other spouse still qualifies.

Caps on Duration. There are restrictions in the law for how long a judge can require a spouse to pay court ordered maintenance in Texas.

Enforcement of Court Ordered Spousal Maintenance. It is very important to understand that even if a spouse is successful in persuading a judge to award court ordered maintenance, and even though the court can enforce that order by contempt (fine or jail time), it still is not a sure bet. The paying spouse can come back to court and ask for the amount he or she pays to be reduced or eliminated entirely if there is a material and substantial change in circusmtances such as the receiving spouse’s ability to meet monthly expenses or the paying spouse’s inability to pay.

Affirmative Defenses: The paying spouse has affirmative defenses to contempt and to the violation of a condition of probation that requires the payment of court ordered spousal maintenance. A spouse who claims these affirmative defenses must properly include them in the court pleadings and prove by a preponderance of the evidence that he or she:

1. lacked the ability to provide maintenance in the amount the court ordered;
2. lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;
3. attempted unsuccessfully to borrow the needed funds;
4. and did not know of a source from which the money could have been borrowed or otherwise legally obtained.

How does court ordered spousal maintenance end? Court ordered spousal maintenance ends by law if:

1. either the payer or the receiver dies;
2. the receiver remarries; or
3. the court orders it ends including when the judge finds the receiving spouse is living on a continuing basis in a permanent place of abode with another person in a dating or romantic relationship.

What if a spouse does not have enough money to pay court ordered spousal maintenance? Before a judge grants a request for spousal maintenance, the judge must take into account whether a spouse who is ordered to pay court ordered spousal maintenance actually has the financial ability to do so. If not, a judge will often consider awarding a disproportionate share of the marital assets and/or less of the debts to the eligible spouse in lieu of cash payments. Judges generally choose to order payments or award a disproportionate share of the marital estate, but not both.

Please take all of these factors into consideration if you are thinking about pursuing court ordered spousal maintenance. As in everything, you must weigh the potential benefits against the potential risks as you navigate through a divorce. For this particular issue, you must ask yourself whether the cost in terms of money, stress, and potential damage to the future relationship with your child’s co-parent of fighting for the court to force your spouse to pay court ordered maintenance will exceed the amount a judge may award or be worth it in the long run? If not, read on, because there is another kind of spousal support in Texas called “contractual alimony'.

What is Contractual Alimony in Texas and How Do I Get It?

The other kind of post-divorce spousal support in Texas is “contractual alimony”. It is voluntary and paid according to an agreement between the spouses as to how much it will be, how long it will last, and what factors may cause it to change such as death of either spouse, cohabitation or remarriage of the receiving spouse, or disability or involuntary unemployment of the paying spouse. There can also be some protections for the receiving spouse such as life insurance and provisions in the event of a late payment. Spouses can negotiate what provisions to include and exclude.

There are no legal eligibility requirements for contractual alimony. If there are financial resources to do so, most commonly divorcing spouses use contractual alimony to establish a required monthly stream of income (usually in addition to child support) for a self-employed, unemployed, or underemployed spouse at the time of divorce to qualify to rent an apartment or for a mortgage loan to buy a house or to refinance the current home into his or her own name. A spouse may also pay contractual alimony to the other spouse to allow that spouse to pay the mortgage, taxes, and insurance to keep the spouse in the marital home with children for a period of time. Frequently spouses ask for assistance for a period of time from the other spouse to help with tuition or educational expenses through contractual alimony if they want or need to return to school to establish or enhance a career and contribute more toward children’s needs.

How does contractual alimony end? Like court ordered spousal maintenance, contractual alimony ends if either spouse dies. However, unlike court ordered spousal maintenance, contractual alimony does not end if the spouse receiving the alimony remarries or cohabitates with someone in a dating or romantic relationship. Instead, a spouse who wants to stop paying alimony in those situations must include those specific terms in the divorce decree.

Enforcement of Contractual Alimony: There is no guarantee for contractual alimony either. If a spouse who has agreed to pay contractual alimony fails to do so, the judge will treat the alimony agreement as a contract and apply any applicable rules of contract law to enforce the terms. Unlike for court ordered spousal maintenance, the family court may not enforce contractual alimony by contempt (fine or jail time) against a nonpaying spouse. The court treats contractual alimony as a debt the paying spouse owes the receiving spouse and Federal and state enforcement rules for collecting debt would apply. In addition, the court can only enforce an agreement for contractual alimony up to the length of time and amount the court could have awarded if it had ordered involuntary spousal maintenance.

Tip for a Spouse Seeking Contractual Alimony: Contractual alimony is by contractual agreement only. Spouses seeking contractual alimony in Texas can avoid making a costly strategic error by getting complete information about the family finances before deciding how much alimony to request from the other spouse. A spouse should make sure he or she knows how much money there is to go around before jumping the gun out of fear and demanding an unreasonably high amount.

There are consequences to making a demand for alimony that is above the paying spouse's available resources or that is outside the legal parameters for court ordered spousal maintenance (see the table above). Such demands almost always cause the other spouse not only to get mad, but often to seriously question the ability of the requesting spouse to make sound financial choices in the future. Too high a demand for contractual alimony also frequently erodes the requesting spouse’s bargaining and negotiating power. When that happens, the spouse who was feeling scared about supporting him or herself after divorce will have an even harder time feeling comfortable negotiating division of assets.

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The distrustful spouse may now feel the need to protect assets and keep them in his or her control rather than to have them in the hands of the other spouse who (rightly or wrongly) may appear unable to understand the financial picture and/or to manage money well. Impulsive, premature, uninformed actions and demands can jeopardize your credibility. Outright refusal to consider alimony can have the same result. For these reasons it is important to begin the actual negotiations of the property division, child support, and alimony only after the mediator has made sure everyone has complete information, understands the law, and has explored all options. There are some other payments besides monthly spousal support that may qualify as alimony such as payments made post-divorce for a former spouse's medical expenses, housing costs (rent, utilities, mortgage, taxes, insurance, etc.), tuition, and life insurance premiums. Go to the IRS’s alimony publication to read more about this.

Don't forget to consider how spousal support can affect child support in Texas.

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Spouses seeking spousal maintenance or contractual alimony in Texas must consider the complete financial picture, and take account the tax implications and the emotions alimony brings up for everyone involved. Detente mediators help spouses have a calm, informed discussion about alimony and reach a reasonable agreement in all of their best interests.

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Note: Read about important 2017 tax law changes to alimony affecting divorce finances.

Always consult a tax specialist who has specific knowledge about spousal support and divorce tax rules who can apply them to your particular situation. Every alimony situation is different. This material is a general overview of Texas court ordered spousal maintenance and contractual alimony and is not a substitute for advice from a licensed tax professional. You are welcome to add to your mediation team a neutral tax expert in the Detente resource network who can help each of you understand the rules and how you may be able to benefit from them.